[00:00:00] Speaker 04:
The final case on calendar for argument is Kirkman versus state of California.

[00:00:31] Speaker 04:
Good morning, counsel.

[00:00:33] Speaker 03:
Good morning, your honors.

[00:00:36] Speaker 03:
I'm going to try to save three minutes for rebuttal, and I'll attempt to watch the clock.

[00:00:42] Speaker 03:
May it please the court, my name is Lee Roystacker, and I represent California Highway Officer Ramon Silva.

[00:00:52] Speaker 03:
As the court knows, this is an officer-involved shooting case that took place on a busy highway in the middle of the day.

[00:00:59] Speaker 03:
The case has unique facts.

[00:01:01] Speaker 03:
It was an extremely fast-paced event with rapidly changing circumstances.

[00:01:07] Speaker 03:
30 seconds elapsed from the time that my client arrived on the scene until the shooting.

[00:01:13] Speaker 03:
And in that culminating moment where the shooting took place, the decedent popped out from behind a car in a shooter stance with something in his hands.

[00:01:27] Speaker 01:
Well, just a minute.

[00:01:31] Speaker 01:
I guess I'm trying to figure out, in the normal qualified immunity case, I would have to use the plaintiff's alleged facts, right?

[00:01:43] Speaker 01:
Correct.

[00:01:45] Speaker 01:
Not the defendant.

[00:01:47] Speaker 01:
You're the defendant.

[00:01:48] Speaker 01:
You got the officer.

[00:01:50] Speaker 01:
I was there with you.

[00:01:51] Speaker 01:
I represented policemen all the time in this kind of a situation.

[00:01:57] Speaker 01:
But my biggest problem was I had to use the plaintiff's alleged facts.

[00:02:03] Speaker 01:
And I had to do them in a situation where the officer was only entitled to immunity as a matter of law, assuming all the factual disputes were resolved against the officer and all reasonable inferences were drawn

[00:02:26] Speaker 01:
in the plaintiff's favor.

[00:02:29] Speaker 01:
The only way this case is any different whatsoever, it seems, is that there's a new case out.

[00:02:36] Speaker 01:
It's Scott v. Harris.

[00:02:39] Speaker 01:
And this says that for purposes of a summary judgment as to qualified immunity, the district court's use of a plaintiff's alleged facts may be disturbed by a video

[00:02:54] Speaker 01:
where it blatantly contradicts the plaintiff's version of events to the point where it so utterly discredited those facts that no reasonable jury could believe it.

[00:03:09] Speaker 01:
Is that your argument today that this footage is so blatantly different than the plaintiff's facts that I have to use the

[00:03:22] Speaker 03:
Camera footage rather than the plaintiff's facts is that your argument essentially yes, and a couple things the alleged facts is always kind of in Kind of giving me a pause because in the context of summary judgment.

[00:03:38] Speaker 01:
It's not really alleged It's it's the evidence, but well it's but in on summary judgment on a qualified immunity we take the plaintiff's allegations and

[00:03:49] Speaker 01:
That's what we have to take.

[00:03:50] Speaker 01:
You can't throw in anything the defendant says.

[00:03:52] Speaker 01:
You have to say everything the plaintiff says and every intentment about it is against me, but even then I win.

[00:04:00] Speaker 03:
Provided they are material facts.

[00:04:01] Speaker 01:
I understand.

[00:04:02] Speaker 01:
Yes.

[00:04:03] Speaker 01:
But in this case, you want to undo those alleged facts by this footage.

[00:04:07] Speaker 03:
I believe the footage certainly contradicts any allegation that

[00:04:14] Speaker 03:
The decedent was not in a shooter stance.

[00:04:16] Speaker 01:
Well, I guess I looked at this video and Frankly Mr.. Alain is if he's in a shooter stance at all in the footage It's for less than a half of a second.

[00:04:35] Speaker 01:
I Mean, I can't really tell whether it's really a shooter stance or not, but if it is I

[00:04:41] Speaker 01:
It was less than a half a second.

[00:04:43] Speaker 01:
Do you agree with that?

[00:04:46] Speaker 03:
In the video?

[00:04:48] Speaker 03:
Yes, but that was also the reaction time that Mr. or my client had.

[00:04:54] Speaker 01:
That half a second... Well, and it was hard to see Alina's at all in the video once he turns the corner because it happened so fast, right?

[00:05:03] Speaker 03:
That is part of it.

[00:05:04] Speaker 03:
It happened so fast, yes.

[00:05:05] Speaker 01:
So does your position regarding Scott V. Harris

[00:05:09] Speaker 01:
rely solely upon the screen shots portraying the supposed shooter's stance.

[00:05:15] Speaker 03:
I don't think that's certainly part of it, but I think if record evidence directly contradicts the allegations, that also is in line with Scott and some of this court's decisions.

[00:05:28] Speaker 03:
The video is certainly one part of it.

[00:05:31] Speaker 01:
But if the video's not in, then I have to look at the plaintiff's facts.

[00:05:37] Speaker 01:
And at that point, I think you lose.

[00:05:40] Speaker 01:
So that's why it's problematic to me because it seems to me that this video evidence doesn't utterly discredit the plaintiff's facts.

[00:05:51] Speaker 01:
There isn't enough to it.

[00:05:52] Speaker 01:
I mean, I looked at it enough to try to really look to see, having been in your case before, your situation, standing in your shoes,

[00:06:02] Speaker 01:
And it's less than a half of a second.

[00:06:05] Speaker 03:
I think the still shots, because it happened so quickly, I think the still shots that were taken from frames of the video are probably better in terms of showing exactly what happened in that fraction of a second.

[00:06:21] Speaker 01:
Well, don't you think that the screenshots, because they're so short, can take what is happening out of context?

[00:06:29] Speaker 03:
I don't, and I don't.

[00:06:30] Speaker 01:
Well, I guess I'm trying to figure out why, having looked at it.

[00:06:34] Speaker 03:
There really isn't, in my view, well, I think the record amply supports that there really isn't any dispute that when he popped out from around the side of the car, he was in a shooter stance.

[00:06:47] Speaker 03:
Indeed, their expert takes that position, and his opinion is the guy was trying to commit suicide by cop.

[00:06:55] Speaker 03:
The only dispute that the district court identified below

[00:06:59] Speaker 03:
was what he was doing in the fraction of a fraction of a second after he came around the car right at the same time as my client made his first shot, whether his arms were going down or whether he was turning slightly.

[00:07:15] Speaker 03:
And in our view, that fraction of a fraction of a second is immaterial.

[00:07:20] Speaker 03:
I mean, the case law is pretty clear.

[00:07:23] Speaker 03:
You don't have to wait to see a gun.

[00:07:26] Speaker 03:
The glint of steel is not the

[00:07:28] Speaker 03:
not the determining factor.

[00:07:31] Speaker 03:
And I think it's really important to remember the sheer speed.

[00:07:37] Speaker 03:
If he had guessed wrong.

[00:07:39] Speaker 01:
If we take out of consideration that there was a shooter stance, because we don't believe the video shows it, then is it still your contention that the district court erred in denying the summary judgment?

[00:07:55] Speaker 03:
If there was no shooter stance at all?

[00:07:57] Speaker 03:
Well, that's a different case, and I'm not sure we'd be here.

[00:08:00] Speaker 01:
But to me, it's... So it all relies on this one half second that I saw in the video.

[00:08:09] Speaker 01:
I think it was... For screenshots, we're showing that it started 704.5 to 704.55.

[00:08:16] Speaker 01:
Yeah.

[00:08:21] Speaker 01:
I mean, we looked at it time and time again to try to help you.

[00:08:26] Speaker 03:
I understand.

[00:08:28] Speaker 03:
But again, I don't even think the district court had an issue with him being in a shooter stance at the point he came around the side of the car.

[00:08:38] Speaker 03:
The district court's problem, or the district court found, they couldn't tell exactly what was happening at the moment he pulled the trigger.

[00:08:47] Speaker 03:
I just don't think there's any dispute about him being in a shooter stance.

[00:08:53] Speaker 01:
Well, I think the dispute comes in that if you look at the plaintiff's facts, there wasn't ever any shooter stance.

[00:09:00] Speaker 01:
And the only way you get to shooter stance is by what you say, looking at the video, says he did.

[00:09:07] Speaker 01:
Because otherwise, nobody says he got in the shooter stance.

[00:09:11] Speaker 03:
Well, I think.

[00:09:15] Speaker 03:
I think the court has jurisdiction to consider the other evidence in the record.

[00:09:19] Speaker 01:
I think the Supreme Court's case is- Well, I think we have jurisdiction because it's summary judgment on a qualified immunity.

[00:09:26] Speaker 01:
But I'm just trying to put now the evidence in the favor, most favorable to the plaintiff.

[00:09:33] Speaker 01:
And the only way I can get out of that is by having a video that surely shows me that it is contradictory.

[00:09:42] Speaker 01:
And I'm telling you, I looked at it and I couldn't find it.

[00:09:46] Speaker 03:
I don't think the video was the only thing you have to rely on.

[00:09:48] Speaker 01:
What is there else?

[00:09:49] Speaker 03:
The undisputed testimony in the record.

[00:09:51] Speaker 01:
There's no undisputed testimony that says there was a shooter's stance.

[00:09:55] Speaker 03:
Both officers said it.

[00:09:57] Speaker 01:
Well, but that's their side.

[00:09:59] Speaker 03:
A witness, an independent witness.

[00:10:00] Speaker 01:
That's their side again.

[00:10:02] Speaker 01:
We're talking about the plaintiff's version of the facts.

[00:10:05] Speaker 03:
Well, again, I don't think there is any dispute that he was in a shooter's stance when he came around the side of the car, leaving my client with

[00:10:12] Speaker 03:
half a second to assess and react.

[00:10:16] Speaker 01:
Let me go one further to a different issue.

[00:10:20] Speaker 01:
How can I ever have in front of me on qualified immunity anything about state law claims?

[00:10:33] Speaker 03:
Well, the state law claims are, and I pronounce this word wrong every time, but they're not intertwined.

[00:10:41] Speaker 03:
They are with the Fourth Amendment.

[00:10:43] Speaker 01:
All they are is

[00:10:45] Speaker 01:
A summary judgment as to what happened at that particular situation, but you can't get qualified immunity on the state law claims.

[00:10:55] Speaker 01:
That's correct, but if the court... So all you can get is a summary judgment on them, which is not intertwined.

[00:11:02] Speaker 01:
You've got a summary judgment on qualified immunity, which we can look at, but when you're looking at the normal summary judgment, I couldn't have that in front of me.

[00:11:12] Speaker 01:
If there was a normal summary judgment in the case it wouldn't be in front of me Because it can't come up here on this kind of review the Bain act California Bain act and the battery claim Are the exact same standard as the fourth amendment well?

[00:11:32] Speaker 01:
I did I know that but if there was a summary judgment on the fourth amendment itself

[00:11:38] Speaker 01:
That we couldn't have that up here in front of us because there would still be damages left.

[00:11:44] Speaker 01:
There's no way to bring a normal summary judgment in front of us.

[00:11:48] Speaker 01:
The only kind of a summary judgment that I can have in front of me at this point when the case is still going is the qualified immunity.

[00:11:58] Speaker 01:
Unless you've got another case that tells me I get something else.

[00:12:02] Speaker 03:
Well, I mean, this court in Williamson, Virginia, National City,

[00:12:08] Speaker 01:
But it isn't intertwined here, this is a summary judgment.

[00:12:12] Speaker 01:
You don't have qualified immunity on a state law claim.

[00:12:16] Speaker 03:
Well, I agree with that, but the point of the claims being intertwined is that the qualified immunity analysis with the two prongs looks first at whether there's a Fourth Amendment violation.

[00:12:28] Speaker 03:
and second, whether there was clearly established law.

[00:12:31] Speaker 03:
If there's no Fourth Amendment violation, that means there's no state law California negligence claim, I'm sorry, state law battery claim or state law Bain Act claim because the standards are the same.

[00:12:42] Speaker 03:
That's how it's intertwined.

[00:12:44] Speaker 02:
Can I ask a question here?

[00:12:45] Speaker 02:
I just wanna make sure I understand correctly.

[00:12:48] Speaker 02:
Is it your client's position that the qualified immunity concept stands or falls on the shooter stance?

[00:12:59] Speaker 02:
So are you saying, like if there was, let's just say there was no shooter stance.

[00:13:03] Speaker 02:
Would the decedent running towards two officers pulling something out of a pocket

[00:13:14] Speaker 02:
That's grayish in color that that wouldn't be enough.

[00:13:20] Speaker 03:
No, my position is not.

[00:13:21] Speaker 03:
It's just the shooter stands.

[00:13:24] Speaker 03:
The totality of the circumstances.

[00:13:27] Speaker 03:
It's everything.

[00:13:28] Speaker 04:
Well, what specifically when you say everything?

[00:13:32] Speaker 04:
What specifically?

[00:13:33] Speaker 04:
Is it that he's running with an object, a shooter stands and what else?

[00:13:40] Speaker 03:
Well, I think

[00:13:42] Speaker 03:
That certainly is it, but I think the question was if he wasn't in a shooter stance.

[00:13:46] Speaker 04:
OK, so you say not just a shooter stance.

[00:13:49] Speaker 03:
Taking an object out of his pocket.

[00:13:50] Speaker 03:
Taking an object out of his pocket, and what else?

[00:13:51] Speaker 03:
And charging at one officer, and then turning a corner and charging at another, and being about five feet away with something in his hands, even if he wasn't in a shooter stance.

[00:14:05] Speaker 04:
So the charging at the officers, is that

[00:14:08] Speaker 04:
Undisputed do the plaintiffs dispute.

[00:14:11] Speaker 03:
I don't think that's disputed All right.

[00:14:14] Speaker 02:
I don't think that can be disputed given the video.

[00:14:18] Speaker 04:
No, we'll see what But the plaintiff's position is okay.

[00:14:22] Speaker 02:
All right.

[00:14:22] Speaker 04:
Thank you counsel

[00:14:36] Speaker 00:
Good morning.

[00:14:37] Speaker 00:
I'm Cooper Mayne, one of the attorneys for the plaintiff and appellee in this case.

[00:14:51] Speaker 00:
So I'd like to address

[00:14:54] Speaker 00:
Just go straight into it since we're already into the case.

[00:14:59] Speaker 00:
The question of whether the shooter's stance is really enough here, because on plaintiff's facts.

[00:15:05] Speaker 04:
Well, let me ask you first.

[00:15:06] Speaker 04:
Do you dispute that there was a shooter's stance?

[00:15:09] Speaker 04:
Do you agree that it's undisputed that the deceased was in a shooter's stance?

[00:15:16] Speaker 00:
No.

[00:15:17] Speaker 00:
On plaintiff's facts, he was not in a shooter's stance.

[00:15:20] Speaker 00:
And the district court agreed with us on page five of her order.

[00:15:23] Speaker 00:
She said that it's a very disputed issue whether the, whether Alaniz was in a shooter's stance.

[00:15:29] Speaker 02:
And is that, is that supported by evidence in the record?

[00:15:32] Speaker 00:
It's supported by circumstantial evidence for sure.

[00:15:35] Speaker 00:
And that in Cruz and Longoria, the court found that not having a gun is circumstantial evidence that you're not pulling a gun.

[00:15:43] Speaker 00:
Not having a gun is circumstantial evidence that you're not

[00:15:46] Speaker 00:
in a shooter's stance.

[00:15:47] Speaker 04:
What about the video?

[00:15:48] Speaker 00:
The video itself is ambiguous.

[00:15:51] Speaker 00:
I think it doesn't show definitively one way or the other.

[00:15:54] Speaker 00:
It's blurry.

[00:15:55] Speaker 00:
It's very quick.

[00:16:00] Speaker 00:
So I think it can go both ways.

[00:16:01] Speaker 00:
And the court below found that in its view, it did not show a shooter's stance.

[00:16:08] Speaker 00:
And the court's decision wasn't blatantly contradicted by the video, as Judge Smith mentioned.

[00:16:16] Speaker 01:
If I say that there was no shooter stance, and if I say that at that point I've got to rely on the plaintiff's facts, what is the crime that's at issue for the first gram factor?

[00:16:36] Speaker 00:
So there's no serious crime here.

[00:16:38] Speaker 00:
This is a mental health call, not a call of a serious crime in progress.

[00:16:43] Speaker 00:
Well, wasn't it a supposed assault?

[00:16:46] Speaker 00:
The district court addressed that below and determined that the officers couldn't make out an assault because given that he had just been hit by a truck going 55 miles an hour, he was not able to actually assault anybody.

[00:17:01] Speaker 01:
Did we consider whether he was resisting arrest?

[00:17:07] Speaker 00:
She may have addressed that.

[00:17:11] Speaker 00:
I don't think it was brought up in our briefing.

[00:17:14] Speaker 01:
Well, it wasn't brought up in the briefing.

[00:17:16] Speaker 01:
That's why I'm trying to figure out what the crime was, that issue in the first gram factor.

[00:17:22] Speaker 00:
I don't think there's any crime here.

[00:17:24] Speaker 00:
I don't think he's able to actually do much.

[00:17:27] Speaker 00:
He's just been hit by a truck going 55 miles an hour.

[00:17:30] Speaker 00:
He's bleeding from his head.

[00:17:31] Speaker 00:
He's woozy.

[00:17:32] Speaker 00:
He's not actually able to assault anybody.

[00:17:36] Speaker 04:
How would the officers know that?

[00:17:39] Speaker 00:
The officers knew that an individual had been hit by a car, I believe a truck, and they knew that he had been hit actually multiple times by multiple vehicles.

[00:17:52] Speaker 00:
And there were reports over dispatch that he was trying to kill himself, but that there was no indication that he had a weapon, no indication that he was trying to hurt anybody else, no indication that he had threatened anybody.

[00:18:07] Speaker 00:
And when they came to the scene, they ordered him to show his hands, and he complied with that.

[00:18:11] Speaker 00:
He showed his hands and brought out a glasses case.

[00:18:16] Speaker 04:
Is there a dispute of fact regarding whether or not he was charging

[00:18:21] Speaker 04:
at the officers plural?

[00:18:24] Speaker 04:
At the time of the shooting, and this gets into the- At any point, was there a dispute of fact regarding whether or not he was charging at the officers?

[00:18:33] Speaker 00:
I guess the word charging is a little bit loaded.

[00:18:36] Speaker 00:
So I mean, he was definitely moving towards the officers at a quick pace.

[00:18:41] Speaker 00:
I wouldn't describe it as charging.

[00:18:44] Speaker 00:
So it would be disputed only to the extent that that word's a loaded term.

[00:18:49] Speaker 00:
But yes, he was moving towards the officers.

[00:18:51] Speaker 04:
So the reason I'm asking these questions is because I'm trying to decide whether or not this is clearly established law.

[00:18:58] Speaker 04:
And so with these facts, what is the clearly established law that would put the officers on notice that shooting the decedent under these circumstances would be unconstitutional?

[00:19:11] Speaker 00:
So there's several cases.

[00:19:13] Speaker 04:
Tell me your best case for the proposition, because we cannot do this at a high level of generality.

[00:19:20] Speaker 04:
So the Supreme Court has told us we have to have pretty close facts to give officers notice that what they are doing violates clearly established law.

[00:19:29] Speaker 04:
So what is the closest case here that would tell the officers that shooting an individual under these circumstances would be unconstitutional?

[00:19:39] Speaker 00:
Yes, Your Honor.

[00:19:41] Speaker 00:
So our best case is Espinosa.

[00:19:43] Speaker 00:
It's a 2010 case where a suicidal individual was contacted by two officers.

[00:19:50] Speaker 00:
The officers said they believed he raised an object that they thought was a gun and they shot him in self-defense.

[00:19:57] Speaker 00:
Both officers shot him.

[00:19:59] Speaker 00:
One of them claimed that he heard a gunshot and mistook that for a shot coming from the suspect.

[00:20:05] Speaker 00:
When they investigated the scene, they found a glasses case under the suspect's right arm.

[00:20:11] Speaker 04:
Was that in a home, though?

[00:20:14] Speaker 00:
That was in a home.

[00:20:14] Speaker 00:
It was in the attic of a home.

[00:20:15] Speaker 04:
Yeah.

[00:20:16] Speaker 04:
That's a little different than being on a busy freeway.

[00:20:19] Speaker 04:
Do you think that makes a difference to this being clearly established law?

[00:20:23] Speaker 04:
Because the home is a more sacrosanct place than a freeway.

[00:20:27] Speaker 04:
So do you see that as making a difference in terms of whether this law is clearly established?

[00:20:33] Speaker 00:
Well, I would actually argue that our case was more unreasonable use of force because in that situation they were in a contained area where the officers were shooting without a risk of hitting bystanders here.

[00:20:46] Speaker 00:
The bullets were going past the suspect and one of them almost hit a truck driver in the background.

[00:20:51] Speaker 00:
So opening fire in a public area like this is even more unreasonable.

[00:20:57] Speaker 00:
What about Landrose?

[00:21:00] Speaker 00:
Landeros is also that's probably our second best case Why is it second best?

[00:21:08] Speaker 01:
I?

[00:21:08] Speaker 01:
Mean the district court didn't use either one of those the district court uses Zion versus County of Orange

[00:21:16] Speaker 01:
Yes, land are and I looked at the zion versus county of orange, so I was glad judge Rawlinson's set us off in this in this idea because I was trying to find the case and I frankly thought land rose versus city of Dustin might be better London

[00:21:35] Speaker 00:
Oh, A.K.H.

[00:21:36] Speaker 00:
Landeros?

[00:21:37] Speaker 00:
Yes.

[00:21:37] Speaker 01:
So in that case... I call it a land roast, but I'm an Idaho boy, so go ahead.

[00:21:43] Speaker 01:
I'm just a yahoo, so you can use that.

[00:21:45] Speaker 00:
So that case does have significant similarities.

[00:21:48] Speaker 00:
In that case, we also have an individual much more dangerous than the individual here, because he had just been assaulting his girlfriend, and he had gang ties.

[00:22:00] Speaker 00:
There is indication that he might have a gun.

[00:22:03] Speaker 00:
And he's walking down the street,

[00:22:04] Speaker 00:
Officer pulls up and he starts the officer says charging towards him He is ordered to show his hands and he pulls his hands out just like the suspect did in this case and the officer shoots him And in that case the court found that because he was unarmed a jury could find that it was unreasonable because he couldn't pose an immediate threat being that he was unarmed and

[00:22:28] Speaker 00:
So that's a great case.

[00:22:29] Speaker 00:
Another good case for us is Longoria that has some very helpful language, and it's a very similar circumstance in that the officer is claiming in that case that he believed an unarmed man had a gun and was in a shooter's stance.

[00:22:43] Speaker 00:
But the court analyzed the facts, looked at the video, and the Ninth Circuit found that viewing the facts in the light most favorable to plaintiff,

[00:22:50] Speaker 00:
A reasonable jury could conclude that the officer knew or should have known that the suspect was not armed, which is our primary argument here that the other officer at the scene, in similar circumstances, was able to identify accurately that the suspect was not armed, that Alaniz was not armed, and therefore couldn't pose an immediate threat of death or severe bodily injury.

[00:23:13] Speaker 00:
And just to finish up on Longoria,

[00:23:17] Speaker 00:
The court concluded that the question of mistake of fact was a pure question of fact, not a question of law.

[00:23:26] Speaker 01:
Do we have any jurisdiction over the state law claims?

[00:23:30] Speaker 00:
No, on the qualified immunity issue, that doesn't extend to state law claims.

[00:23:36] Speaker 00:
Additionally, the state law claims have different

[00:23:39] Speaker 00:
Elements to them different standards different jury Instructions, they're not exactly overlapping especially with recent changes to the battery instruction So I don't believe that there's a enough of an overlap to but we did The district court did grant summary judgment as to those claims, right?

[00:24:00] Speaker 01:
Denied summary excuse me denied summary judgment as those claims true but

[00:24:10] Speaker 01:
Did there wasn't any ever seen a summary judgment granted or denied as to the run-of-the-mill fourth amendment claim?

[00:24:18] Speaker 01:
It's only as to the qualified immunity claim, right?

[00:24:22] Speaker 00:
Well the court denied summary judgment for the fourth amendment claim on both qualified immunity grounds on both the Clearly established prong and the underlying That's what I'm all right so

[00:24:41] Speaker 00:
I wanted to just talk about the video for a minute.

[00:24:44] Speaker 00:
The case is cited by the defendant to show when a video clearly contradicts.

[00:24:51] Speaker 00:
what the plaintiff's facts are and what the court determined are the facts of the case.

[00:24:58] Speaker 00:
Our cases like Williams versus City of Sparks, where the video clearly contradicted what the district court was saying happened.

[00:25:04] Speaker 00:
They said that the car was not being attempted to be moved, but in the video you see the wheel turning.

[00:25:10] Speaker 00:
So it's just obviously not true.

[00:25:12] Speaker 00:
The facts of the case are contradicted by the video.

[00:25:15] Speaker 00:
Same with Scott V. Harris.

[00:25:19] Speaker 00:
This doesn't raise to that level.

[00:25:21] Speaker 00:
The video is very consistent with everything the court says.

[00:25:25] Speaker 00:
And I wanted to talk about there's two issues that come up.

[00:25:42] Speaker 00:
We've been focused on the shooter stance, but I think the case can be really Determined more and there's a lot of discussion about this at the district court level by whether a reasonable officer would have thought that Alan is was armed So that's a problem on two levels First there's a credibility issue that during the incident itself officer Silva didn't say anything indicating that he believed he had seen it done so even though his

[00:26:08] Speaker 00:
partner had transitioned to non-lethal force.

[00:26:10] Speaker 00:
He didn't warn his partner saying, hey, the suspect has a gun, which you'd think he would do.

[00:26:16] Speaker 00:
And after the incident, he walked up to his partner and said, what was that in his hands?

[00:26:22] Speaker 00:
Was that a gun?

[00:26:23] Speaker 00:
Both indicating that he may not have believed that in the moment anyways.

[00:26:27] Speaker 00:
And a jury could find that his credibility was not

[00:26:33] Speaker 00:
intact and not believe him on that front.

[00:26:36] Speaker 00:
But even if we grant that he subjectively believed that he saw a gun, there's lots of evidence to say that it wouldn't be a reasonable mistake to think that he was armed.

[00:26:48] Speaker 00:
So the other officer at the scene, in similar circumstances, was able to identify that Alaniz was unarmed.

[00:26:54] Speaker 00:
And the object itself is a gray

[00:26:57] Speaker 00:
glasses container.

[00:26:58] Speaker 00:
This isn't like one of the cases where you have a replica weapon like Strickland that had to do with a replica gun or NAPUC that had to do with a replica sword.

[00:27:08] Speaker 00:
This object doesn't have a trigger.

[00:27:10] Speaker 00:
It doesn't have a barrel.

[00:27:11] Speaker 02:
Why would somebody rush towards a police officer and pull out a gray glasses container?

[00:27:18] Speaker 02:
What would be the purpose of that?

[00:27:20] Speaker 00:
Well, I think the analysis for Fourth Amendment isn't so much what's going on in the head of the suspect as much as it is what are the circumstances being faced by the officer.

[00:27:33] Speaker 00:
So no matter what is going on in the head of a suspect, if you can see that they're unarmed, you know that they are not immediate threat of death.

[00:27:41] Speaker 04:
But the officer said they couldn't see if he was unarmed.

[00:27:45] Speaker 00:
Well, Officer von Dracht, facing similar circumstances, could see that he was unarmed, which is evidenced by the fact that he transitioned from his firearm to his taser.

[00:27:54] Speaker 00:
And he said in deposition in his statements he would never transition to a taser if he thought he was being faced by something that looked like a gun.

[00:28:03] Speaker 00:
So he also described the object as too big and too wide to be a gun.

[00:28:11] Speaker 00:
So based on the other officer at the scene and his actions and the object itself, a jury could find that it was unreasonable to mistake Alaniz as armed and that a reasonable officer would have seen that he's unarmed.

[00:28:24] Speaker 00:
So then the question of the stance that he's in is not really material, because whether somebody is in a stance with their hands out or their hands down or to the side, if you can accurately perceive that they're unarmed,

[00:28:40] Speaker 00:
don't pose an immediate threat of death or severe bodily injury.

[00:28:44] Speaker 00:
And it's unreasonable to use lethal force against them.

[00:28:52] Speaker 01:
I definitely wouldn't have helped your client if we'd looked at that video and we'd have absolutely seen your client in a shooter stance, standing there for three minutes looking at him.

[00:29:09] Speaker 00:
Well, that's not.

[00:29:09] Speaker 01:
That would have definitely helped the other side, wouldn't it?

[00:29:12] Speaker 00:
I think that could cut both ways because the more time he had to look, the more obvious it would be that he was unarmed.

[00:29:17] Speaker 00:
All right.

[00:29:18] Speaker 00:
And the object just looks nothing like it does.

[00:29:19] Speaker 01:
When I said three minutes, that might have been too long.

[00:29:22] Speaker 00:
But anyway, OK.

[00:29:23] Speaker 00:
Another case to consider here is Longoria, which we talked about a little bit, but goes straight to this issue of credibility of an officer saying that an unarmed person is pointing a gun at them

[00:29:38] Speaker 00:
and the court finds that that's just a classic jury issue and Denies qualified immunity on that basis All right counsel you've exceeded your time.

[00:29:49] Speaker 03:
Thank you Your bottle Thank you, I'm just a couple comments Scott clearly says that the court or the court can consider the level of culpability that

[00:30:08] Speaker 03:
of everybody, so that includes the decedent here.

[00:30:13] Speaker 03:
You can look at his conduct.

[00:30:16] Speaker 03:
With respect to what the other officer saw, his testimony is clear that he didn't know what the guy had.

[00:30:23] Speaker 03:
He said it could have been a knife, it could have been a gun.

[00:30:27] Speaker 03:
He thought it was too big to be a gun, but he clearly said several times, I didn't really know what it was.

[00:30:33] Speaker 03:
It could have been a knife, it could have been a gun.

[00:30:37] Speaker 03:
If you look at the purpose of qualified immunity, I don't think under any set of these facts that you could say my client was clearly incompetent or committed a known violation of the law.

[00:30:54] Speaker 03:
And remember, in the Fourth Amendment.

[00:30:56] Speaker 04:
Well, isn't that what the clearly established prong does to determine whether or not the officer committed a known violation?

[00:31:04] Speaker 04:
Because that's what we do with the clearly established prong.

[00:31:07] Speaker 03:
And in the context of force and under the Fourth Amendment, it's important to remember that facts dictate the result.

[00:31:16] Speaker 03:
And these cases often fall on the hazy border between acceptable and unreasonable force.

[00:31:24] Speaker 03:
And I clearly believe that this is a case that warrants qualified immunity.

[00:31:29] Speaker 04:
All right.

[00:31:29] Speaker 04:
Thank you, counsel.

[00:31:31] Speaker 04:
Thank you to both counsel.

[00:31:33] Speaker 04:
The case just argued is submitted for decision by the court.

[00:31:38] Speaker 04:
That completes our calendar for today.

[00:31:40] Speaker 04:
We are on recess until 930 a.m.

[00:31:44] Speaker 04:
tomorrow morning.